Scottish Court of Session Decisions

Subject_1 SUPERIOR AND VASSAL.
Subject_2 SECT. XIV.

A Superior bound to enter the Vassal, reserving his own Right.

Menzies
v.
Laird of Glenurchy

Date: 28 June 1672
Case No. No. 79.

A superior is bound to infeft his vassal or sub-vassal, whatever right he may have in his own person, which is reserved to him by a clause salvo jure suo.

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Umquhile Mr. William Menzies of Shian, being infeft in the lands of Shian, in anno 1631, by the Laird of Lawers, James Menzies, his son and heir, being retoured heir to him therein, and having raised precepts out of the Chancery against Lawers, to infeft him; upon his disobedience he now pursues Glenurchy, Lawers' superior supplendo ejus vices, to infeft him. Glenurchy alleged absolvitor, because he denies to be superior to Lawers, but that the land belongs to him in property, and there is no right from him or his predecessors to Lawers shown. The pursuer answered, That vassals seeking infeftment upon retours against a superior's superior, which is matter of course, cannot be put to instruct their superior's right, which is in the superior's own hand, no more than an appriser craving infeftment from his debtor's superior, is obliged to instruct his debtor's right, but the infeftment in either case is periculo petentis, and salvo jure, even of the superior himself;—and here the pursuer produced discharges granted by Glenurchy's grandfather of the feu-duties of these lands. It was replied, That receipts of feu-duties cannot instruct the feu, much less constitute the same, even against the receiver himself, further than as to the years contained in the receipts, much less against his singular successor. Ita est, Glenurchy hath right by disposition from his grandfather, his father being living; 2do, Glenurchy hath reduction depending both against Lawers and this pursuer, of any pretence of right they have, which is prejudicial, and ought to be first discussed.

The Lords repelled the defences, and decerned Glenurchy to infeft, reserving his own right and reduction as accords, seeing the pursuer has been so long in possession, and the event of the reduction is dubious.

Fol. Dic. 2. p. 410. Stair, v. 2. p. 93. *** Gosford reports this case:

Shian's father being immediate vassal to the Laird of Lawers when he died, his son being served heir, and having obtained decreet against Lawers, and, upon his refusal, having charged Glenurchy to enter him, he did allege, That he could not be decerned, because he was infeft in the property of the said lands. It was replied, That they offered to prove that Sir Duncan Campbell, Glenurchie's goodsir, from whom he derived right, had received payment of the feu-duties of the said-lands from the Lairds of Lawers, or Lairds of Shian. To which it was duplied, That Glenurchie not being apparent heir when he was infeft by Sir Duncan, his father being yet in life, he was in the case of a singular successor, who cannot be prejudged of the right of property upon an allegeance of payment of a year's feu-duty to his author.

The Lords did repel the defence and duply, and found, That as on a charge by a compriser against the superior, who pretends right to the property, they are in use to decern them to enter, but prejudice of any right they themselves can pretend to the lands; so, in this case, they decerned Glenurchie to enter Shian reserving all his own right of property, and reduction of Shian's right at his instance, which they declared to be unprejudged by his entry.

Gosford MS. p. 264.